Pooya Pakarian v. University of Toronto, 2012 HRTO 560

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pooya Pakarian

Applicant

-and-

University of Toronto, University Health Network, Roger Chen, Michael Angel and Aimee Nelson

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: March 19, 2012

Citation: 2012 HRTO 560

Indexed as: Pakarian v. University of Toronto

1On January 19, 2012, the Tribunal issued Decision 2012 HRTO 156 dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision. The Request for Reconsideration is a lengthy document and contains a number of complaints about how the Application was processed and about the content and reasons in Decision 2012 HRTO 156.

background

2The Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleged discrimination and harassment on a number of grounds, including place of origin, citizenship, sex, and reprisal.

3The processing of the Application was managed by the Tribunal through a series of Interim Decisions and Case Assessment Directions.

4The Application was filed on October 16, 2009. The Tribunal issued a Notice of Intent to Dismiss on October 26, 2009, because it appeared that the Application had been filed more than one year after the last incident of alleged discrimination without evidence that the delay was incurred in good faith and would not result in substantial prejudice to the respondents. The applicant made submissions in response to the Notice of Intent to Dismiss and argued that the Application had been filed within one year of the last incident of alleged discrimination.

5In Interim Decision 2009 HRTO 1964, Vice-chair Bhabha directed that a telephone conference call be held to determine if the Application should be dismissed because of delay. The conference call was scheduled for February 1, 2010.

6The parties filed written submissions in advance of the conference call hearing. The applicant asked that the Tribunal expedite the Application and this was added to the issue agenda for the conference call hearing.

7After the conference call hearing, Vice-chair Bhabha issued Interim Decision 2010 HRTO 457. It concluded (at paragraph 29) that the applicant had made allegations which if successful, could fall within the definition of a “series of events” bringing the Application within the limitation period set out in section 34 of the Code. The Vice-chair found that a final determination regarding whether the alleged events were in fact a “series of events” within the meaning of section 34 of the Code could not be established without hearing evidence and submissions.

8At paragraph 31, the Vice-chair stated:

This matter will proceed to an oral hearing. After the applicant has called his evidence, the respondents will not be precluded from making further submissions on the issue of delay or any other requests.

9The respondents were directed to file a Response to the Application.

10Interim Decision 2010 HRTO 457 also dealt with the applicant’s request that the Application be expedited. The request was denied for the reasons set out in paragraphs 36 and 37 of the Interim Decision.

11Finally, the Interim Decision noted that the applicant had identified only personal respondents and not the institutions involved. The applicant was directed to file a request to amend the Application if he wished to also name the University of Toronto and the University Health Network.

12The Interim Decision directed that a two-day hearing would be scheduled. In the hearing, the applicant would be expected to call his evidence, “after which the parties may make further submissions on the issue of delay.”

13The applicant filed a Request for Order During Proceedings asking that the Application be amended to add the two institutional respondents. It also asked that the Interim Decision be reconsidered in respect of the history set out in the Interim Decision, some of which the applicant believed was not correct.

14On April 13, 2010, the Tribunal issued Interim Decision 2010 HRTO 815. That Interim Decision granted the request to add the two institutional respondents. It denied the request for reconsideration because the history set out in the earlier decision merely reflected a summary of allegations and did not reflect findings of fact. The Interim Decision also found that objections raised by some of the respondents about documents referred to in the applicant’s submissions were premature.

15The institutional respondent the University of Toronto then filed a Request for Order During Proceedings, asking the Tribunal to schedule a Case Conference to discuss various matters, including whether the institutional respondents were required to file a Response.

16On June 28, 2010, Vice-chair Bhabha issued a Case Assessment Direction confirming that the institutional respondents were required to file a Response.

17A Case Conference was held on November 30, 2010, following which Vice-chair Bhabha issued a Case Assessment Direction dated December 13, 2010. In the Case Conference, the applicant advised that he had moved to Iran and that he could not confirm that he could attend the hearing. The Case Assessment Direction directed the parties to file further submissions about this. The respondents submitted that the applicant should be required to attend the hearing in person. The applicant asked that he be allowed to participate by teleconference call.

18On February 17, 2011, the Tribunal issued Interim Decision 2011 HRTO 348. The Vice-chair determined that in the circumstances of the case, the applicant would participate in the hearing by telephone conference call. The Interim Decision outlined the Vice-chair’s understanding and direction about how the case would be heard. At paragraph 15, he indicated that the telephone conference call would be an “initial hearing” and that the purpose of the initial hearing would be to allow the applicant to present his case and that after the applicant had presented his case, “the Tribunal will determine whether there is a basis to proceed to hear the respondents’ evidence.”

19The Vice-chair indicated (at paragraph 9) that “the applicant maintains that his case will be proven on the strength of the documentary evidence, and that his personal attendance is both unnecessary and a hardship.” At paragraph 6, he indicated that the applicant “plans to call no additional witnesses.”

20The Vice-chair made the following directions at the conclusion of the Interim Decision:

Regarding the applicant’s evidence in particular, his position is that he will establish his case mostly through documentary evidence. The most fair, just and expeditious way of proceeding, given that he will not personally attend, is for the applicant to present his complete case in-chief, in writing, prior to the hearing.

The applicant is directed to deliver to the respondents, and file with the Tribunal, copies of all documents he intends to specifically rely on and make reference to 15 days prior to the hearing. These documents should be organized chronologically (in date order) with consecutively numbered pages. The applicant must also file, at the same time, a Statement of Evidence In-chief (“Statement”), of up to a maximum length of 20 pages. This will comprise his direct personal statements in support of his allegations. He will be required to solemnly affirm the truth of its contents at the hearing. The Statement should include express reference to any documents or emails he is relying on. The Statement should provide information that clearly and directly addresses the following questions:

1. Did any of the respondents, individually or together, subject the applicant to differential treatment on the basis of his background or place of origin? If so, what was the specific action or omission and how was it connected to his background or origin?

2. Did any of the respondents subject the applicant to sexual harassment within the meaning of the Code? If so, what were the specific incidents and how did they constitute sexual harassment?

The applicant is not required at this point to give evidence as to the effects of the alleged discrimination or the remedy sought. The respondents are not required to file any evidence or submissions in advance of the hearing.

At the hearing, the respondents will be given the opportunity to make submissions as to whether the applicant’s evidence discloses a prima facie case on the basis of uncontested evidence. They may also address the issue of the need for cross-examination, with reference to any contested facts that they believe depend on credibility assessments.

Two days of hearing are not necessary for this preliminary review of the applicant’s evidence and legal argument with respect to the prima facie issue. One day only will be scheduled.

21The telephone conference call hearing was scheduled for June 28, 2011 (the “June 2011 hearing”).

22In advance of the hearing, the applicant submitted a Request for Order During Proceedings seeking to admit an 86-page document plus 30 additional attachments containing web pages and other documents. The applicant called the document his “Case Presentation”. The respondents objected to the Request, noting that the Case Presentation did not comply with the Vice-chair’s directions in the last Interim Decision.

23At the telephone conference call hearing, one of the issues addressed was the status of the applicant’s Case Presentation.

24On January 19, 2012, the Tribunal issued Decision 2012 HRTO 156. In that Decision, Vice-chair Bhabha dismissed the Application.

25The Decision described the issues in the hearing in the following terms (at paragraphs 9 and 10:

The issue for me to decide, at the outset is: Are the applicant’s documents admissible as evidence?

If the applicant’s documents are to be admitted, then the question will be whether he has established, on the basis of unchallenged evidence, a prima facie case of discrimination or harassment within the meaning of the Code? If the answer to this question is positive, only then might it be necessary to provide an opportunity for cross-examination of the applicant before hearing the respondents’ evidence.

26In regard to the documents submitted by the applicant, the respondents argued that they should not be admitted as evidence and asked the Vice-chair to find that the applicant had abused the process to the point where the Application should be dismissed as an abuse of process. According to paragraph 15 of the Decision, the applicant advised that the entire submission contained the entirety of his case.

27The Vice-chair outlined his concerns about the applicant’s conduct and the content of some parts of the submission. However, he determined that he would admit the submission in part. He indicated he would not consider those parts of the submission which were in effect a request to reconsider the earlier Interim Decision 2010 HRTO 457 because this had already been dealt with. He also found that it was appropriate to consider parts of the submission that related to proceedings under the Regulated Health Professions Act, for the reasons explained at paragraphs 28 and 29 of the Decision.

28The Decision then considered whether the applicant had established a prima facie case. At paragraphs 30-39, Vice-chair Bhabha explained his reasons for concluding that the applicant had not established a prima facie case in regard to allegations of sexual harassment.

29The Decision then turned to a consideration of whether the applicant had established a prima facie case in regard to his allegations of discrimination. The Vice-chair concluded that the applicant had not established a prima facie case of discrimination. He then considered whether the investigation of the applicant’s complaints by the institutional respondents had been reasonable. He found (at paragraph 52) that the institutional respondents “fully investigated the issues raised by the applicant”, and concluded:

The fact that the applicant feels so strongly that he was further victimized by the investigation process is more likely, on balance, to be the result of the applicant’s absolute conviction that he was treated poorly by Chen, and by his obvious desire to be vindicated that his credibility on this point is not reliable, for the reasons discussed above.

30The Vice-chair concluded that the applicant had not established a prima facie case of discrimination or harassment contrary to the Code, and the Application was dismissed on that basis.

General Observations

31In order to appreciate and consider the applicant’s reconsideration request it is helpful to clearly understand the purpose of the June 2011 hearing and specifically what the applicant was required to show in that hearing.

32The Vice-chair’s prior Interim Decisions and Case Assessment Directions had directed that the applicant was required to show a prima facie case of discrimination. The classic definition of what is required to show a prima facie case of discrimination is found in paragraph 28 of Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”):

A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent‑employer.

33In Jagait v. IN TECH Risk Management, 2009 HRTO 779, an early decision of the Tribunal, the reasons for requiring an applicant to show a prima facie case was discussed in the following terms at paragraph 19:

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that she has established a prima facie case of discrimination.

34In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal discussed the evolution of the Tribunal’s approach to the prima facie test. The Associate Chair noted that the Tribunal had adopted Rule 19A as part of its Rules of Procedure. Rule 19A authorizes the Tribunal to dismiss an Application if the Tribunal is satisfied that the Application has no reasonable prospect of success. At paragraphs 20 and 32, the Associate Chair suggested that in most cases for the purposes of adjudication at the Tribunal, the determination of whether there is no reasonable prospect of success is essentially the same as the test of whether the applicant has established a prima facie case:

An applicant who cannot prove the foundations of the claim that depends on his or her evidence as in Jagait cannot proceed with the case and this may be analyzed as a lack of prima facie case and/or no reasonable prospect of success. The prima facie case test as applied in Arias is based on the standard that an application should be dismissed if, assuming all the facts alleged by the applicant to be true, there is not discrimination, and the same principle is incorporated in the concept of no reasonable prospect of success.

In my view, when a general evaluation of the evidence that has been called and is proposed to be called makes it clear that the Application has no reasonable prospect of success; the Application should be dismissed. This is a principled test that is consistent with the Code, and that incorporates the concept of prima facie case.

35Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, is another case that discusses the application of the prima facie test to the Tribunal’s process, particularly at paragraphs 59-61.

36To return to the present case, pursuant to the Interim Decisions and Case Assessment Directions that preceded it, the purpose of the June 2011 hearing was to allow the applicant to demonstrate that there was a prima facie case of discrimination.

37If the applicant had established this, the hearing process would have continued. The respondents would have had a right to cross-examine the applicant and to call evidence to show that the applicant’s Code rights were not violated. The Vice-chair would then have made a decision about whether the applicant’s Code-rights had been or had not been violated.

38In advance of the June 2011 hearing, the applicant had stated that he would be able to establish his case on the basis of documents alone. Just before the hearing, he submitted more documents and extensive submissions. There was an issue regarding the admissibility of these additional documents and submissions. Except for the specific documents and parts of the submission noted in the Decision, the Vice-chair considered all of the documents and submissions presented by the applicant. In addition, the Vice-chair heard the oral submissions of the applicant. After considering all of the documents and submissions, the Vice-chair concluded that the applicant had not established that there was a reasonable prospect that he would be able to prove that his Code-protected rights had been infringed. Given that, there was no purpose in continuing the hearing process.

The Reconsideration Test

39Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

40The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

41The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

42Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

43As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

44Reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

THE RECONSIDERATION REQUEST

45The Reconsideration Request sets out a number of complaints about how the Application was processed and about the conclusions reached by the Vice-chair. For the reasons that follow, I find that there is no basis to grant the applicant’s Reconsideration Request.

Procedural issues

Purpose of the hearing

46The applicant alleges that there was confusion about the purpose of the June 2011 hearing. He notes that even some of the lawyers representing the respondents seemed confused about the purpose of the hearing as there was correspondence from them indicating that they thought that the purpose of the hearing was to deal with the delay issue. He notes that earlier on there was going to be a two-day hearing. This was cancelled in favour of the one-day telephone conference call. It is clear from Interim Decision 2011 HRTO 348 that a major reason that the telephone conference call was scheduled was to accommodate the fact that the applicant was no longer living in Canada and could not attend an in-person hearing. The issue in the conference call was only whether the applicant could establish a prima facie case.

47As I have reviewed earlier, the history of the adjudication of this case was complex. However, it is apparent that the Tribunal gave the applicant considerable latitude to ensure that the applicant had a full opportunity to present his arguments and documents to show whether there was a prima facie case of discrimination.

Witnesses

48In his Case Presentation, the applicant asked the Tribunal to “cross-examine all witnesses including, but not limited to, the recipients of the present document.” The Case Presentation did not indicate what these potential witnesses would say or how their testimony would support his allegations. The recipients of the document included approximately 50 people, almost all of whom had nothing to do with the allegations in the Application. In the Reconsideration Request the applicant suggests that the Tribunal refused to examine witnesses and indicates that this refusal provides a reason for reconsideration.

49The applicant had previously made clear to the Tribunal and the respondents that he would be able to prove his case on the basis of documents and his presentation. If the applicant believed that in fact his case also depended on evidence of other witnesses, he should have explained what that evidence was.

50The Reconsideration Request suggests that the applicant was under the impression that the Tribunal would conduct some sort of inquiry, including interviewing people identified by the applicant. It is not clear how the applicant could have formed this impression. The Tribunal’s application and Rules of Procedure are clear that the applicant is expected to bring the evidence to prove his case.

Vice-Chair Bhabha’s status with the Tribunal

51The applicant notes that Vice-chair Bhabha resigned from his position as a Vice-chair of the Tribunal to pursue other interests, some months before the Tribunal released Vice-chair Bhabha’s decision in this matter. He questions whether this was appropriate and if Vice-chair devoted sufficient time to the Decision since he was not serving as a full-time adjudicator.

52Section 4.3 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides as follows:

If the term of office of a member of a tribunal who has participated in a hearing expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose.

53This section applies to the Tribunal pursuant to section 42 of the Code and provides the legal authority that allowed Vice-chair Bhabha to continue to adjudicate the case.

Reprisal

54The applicant notes that one of the grounds that he identified in the Application was reprisal. In the Reconsideration Request, the applicant claims that the Decision failed to deal with this ground.

55The Decision reviews the events that occurred after the applicant made his complaints to the institutional respondents and up to the time of the Decision. These events included the institutional investigations and response to the applicant’s complaints. While the Decision does not explicitly state that the Vice-chair found no evidence of reprisal, there can be no doubt that this finding is implicit in the Decision.

The influence of the applicant’s behaviour at the Tribunal

56The applicant suggests that the Decision was unduly influenced by the applicant’s behaviour during the adjudication of the Application.

57The Decision does discuss the fact that the applicant consistently failed to follow the directions set out in the earlier Case Assessment Directions and Interim Decisions. This discussion was necessary and appropriate because the respondents legitimately raised concerns about the applicant’s conduct.

58In the Decision, the Vice-chair made findings about the applicant’s credibility. In part these findings were influenced by the applicant’s behaviour during the adjudication of the claim. For example, at paragraphs 49-51, the Vice-chair indicated that the applicant’s refusal to accept directions and his overall approach to the Application added to the overall conclusion that the applicant had failed to establish a prima facie case.

59In considering an Application it is necessary to consider all of the evidence, including, where applicable, an applicant’s credibility. In assessing credibility, this Tribunal has frequently cited and applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

60In my view, on a review of paragraphs 49 to 51 it is clear that the Vice-chair was assessing the credibility of the applicant having regard to the types of factors set out in Faryna v. Chorny, which does not raise a basis on which I would grant the request for reconsideration.

The Vice-chair did not provide sufficient assistance to the unrepresented applicant

61The applicant maintains that the Vice-chair should have taken into account that the applicant is unrepresented and should have shown more leniency and provided more assistance to him.

62It appears to me that the Vice-chair in this case provided extensive directions throughout the life of the proceeding that were intended to ensure the applicant knew and understood the case he had to meet. It seems clear that the applicant elected not to follow those directions. On my review, the record suggests that Vice-chair nevertheless made quite extensive efforts to ensure that the applicant had a full opportunity to explain why there was a prima facie case while also balancing the respondents’ legitimate expectations of a fair hearing.

The Decision did not deal with all of the applicant’s complaints

63In the Reconsideration Request, the applicant addresses at some length various aspects of his complaints about the respondents that he believes were not adequately addressed in the Decision.

64In this case, the applicant’s submissions dealt in great detail with his various interactions with the respondents and others. As noted in the Decision, most of the applicant’s allegations about these interactions have nothing at all to do with his Code-protected rights. In paragraph 41, the Decision noted that the Tribunal does not have jurisdiction to deal with many of the allegations which concerned dishonesty or fraud. It is not necessary for the Tribunal to deal with allegations that are beyond the Tribunal’s jurisdiction.

The applicant disagrees with the conclusions in the Decision

65For the most part, the Reconsideration Request sets out once again the applicant’s various grievances about the respondents. These have been summarized in the Tribunal’s previous Interim Decisions and the Decision.

66The applicant continues to maintain, as he did in the Case Presentation and earlier submissions discussed in the earlier Interim Decision, that some of the details of the history that Vice-chair Bhabha relied on are wrong. For the most part, the details that the applicant is concerned with have nothing to do with the human rights allegations in this case and instead concern the applicant’s numerous grievances relating to other matters, such as his allegations of fraud and theft of intellectual property.

67As noted earlier, the Tribunal’s reconsideration process is not an opportunity to reargue the case. Once a hearing has been held and the issues adjudicated, it is often happens that the losing party does not agree with the decision. However, the fact that a party does not agree with the result is not a basis for reconsidering the decision. In order to satisfy the threshold test for granting a request for reconsideration, the requesting party must satisfy one of the criteria set out in section 26.5 of the Code. For example, it is not enough to simply allege that the conclusions reached by the Tribunal were wrong; the requesting party would have to satisfy the Tribunal that there are new facts or evidence that could potentially be determinative of the case and could not reasonably have been obtained earlier, or that some other factor exists that outweighs the public interest in the finality of decisions.

68In the Reconsideration Request, the applicant identifies findings that he believes show that the Decision is significantly wrong.

69In particular, the applicant submits that the Application should have been allowed to proceed because the respondents “confessed” about the truth of his allegations in the Responses that they filed in response to the Application.

70Most of these supposed confessions again relate to issues other than the human rights issues and allegations. They are also not in fact confessions of anything as the Responses clearly indicate that all of the allegations are denied. The supposed confessions about the allegations of sexual harassment are in fact explanations of entirely innocent comments that the respondents suggest have been misconstrued by the applicant.

71My review of the Reconsideration Request reveals no new information, and in my view the applicant is merely attempting to re-characterize information that was before the Tribunal because he disagrees with the conclusions reached on the basis of that information. This is not a basis for reconsideration.

DECISION

72For all of the above reasons, I find that the applicant has not established any basis that would suggest that the Decision should be reconsidered. The Reconsideration Request is denied.